IN THE ESTATE OF HOWARD LEWIS VESS IN RE: ESTATE OF HOWARD LEWIS VESS
Court for Prince George's County Case No. CAL 15-08368
Court for Prince George's County Estate No. 87911
Meredith, Arthur, Leahy, JJ.
six years ago, Claudia Vess commenced caveat proceedings in
the Orphans' Court for Prince George's County. After
several years of litigation, the orphans' court
transmitted five issues to the circuit court for a jury
Vess took a de novo appeal to the Circuit Court for Prince
George's County. The circuit court ruled against her. Ms.
Vess appealed from that judgment in In the Matter of
Estate of Howard Lewis Vess, No. 372, Sept. Term 2016.
For the reasons set forth in this opinion, we reject her
challenge to the circuit court judgment and the underlying
order to transmit issues.
the circuit court entered judgment in the de novo appeal, the
orphans' court entered an order
"re-submitt[ing]" the issues for trial. In
Claudia Vess v. Robert Price, Jr., No. 524, Sept.
Term 2016, Ms. Vess appealed directly to this Court from that
orphans' court order. We also reject her challenge to
combined result of both determinations is that this case can
finally proceed to a trial in the circuit court on the issues
as framed by the orphans' court.
and Procedural Background
The Last Will and Testament Dated August 11, 2006
Vess died on June 10, 2011, at the age of 89. He was a
widower and had no children.
Vess's wife, Katherine, predeceased him in February 2006.
Before her death, she had been the principal beneficiary of
his two, prior wills.
six months after his wife's death, Mr. Vess engaged an
attorney to prepare a new will. That document is titled
"Last Will and Testament of Howard L. Vess" and
dated August 11, 2006.
Vess's 2006 will revoked all of his prior wills and
codicils. He made one specific legacy in the amount of $10 to
his brother, provided that he survived Mr. Vess. The only
other gift provision was a residuary clause, in which Mr.
Vess devised the remainder of the estate to his "good
friend, ROBERT V. PRICE, JR., or his issue." The 2006
will named Mr. Price as personal representative, and named
Mr. Price's wife as a substitute personal
Vess's brother died in 2009. He had three surviving
children: Claudia, Brian, and Debra.
weeks after Mr. Vess's death in 2011, Mr. Price filed a
probate petition with the Register of Wills for Prince
George's County. He requested administrative probate of
the will dated August 11, 2006. He listed Claudia Vess as an
interested person and identified her as Mr. Vess's
surviving niece and a potential heir.
Register of Wills granted Mr. Price's request that he be
appointed as personal representative of the estate. In
addition, the Register docketed the two prior wills and two
prior codicils, each of which had been filed with the
Register for safekeeping.
Claudia Vess's Petition to Caveat the 2006 Will
December 28, 2011, Howard Vess's niece, Claudia Vess,
filed a petition to caveat in the Orphans' Court for
Prince George's County. She requested that the 2006 will
be declared invalid and that "any previous will be
declared valid." She asserted that her interest in the
estate was "based on any previous will executed by [Mr.
Vess] or by intestacy."
caveat petition, Ms. Vess asserted that the document dated
August 11, 2006, was not Mr. Vess's last will and
testament. Her petition alleged: that Mr. Vess lacked
testamentary capacity and was not of sound and disposing mind
at the time of execution; that the instrument was not
executed and witnessed properly; that the signature on the
document was not Mr. Vess's signature; that the
instrument was procured by fraud; and that the instrument was
procured by the exercise of undue influence of Mr. Price, who
allegedly maintained a confidential relationship with Mr.
Vess. Although Ms. Vess did not include the allegation in her
petition, her other submissions assert that Mr. Price
established a confidential relationship with Mr. Vess by
serving as his financial advisor.
caveat petition included a request that Mr. Price "be
required to answer" the petition. Maryland Rule 6-432(a)
states that, within five days after the filing of a petition
to caveat, the register of wills must "issue an Order to
Answer requiring the personal representative . . . to respond
to the petition to caveat within 20 days after
service[.]" Rule 6-432(b) requires the register of wills
to serve that order and the caveat petition on the personal
representative. In this case, the register did not issue such
an order within that time period.
on the twentieth day after Ms. Vess had filed her petition,
Mr. Price responded by filing a motion to dismiss the
petition based on lack of standing. Mr. Price contended that
Ms. Vess would have no direct interest in the estate even if
she succeeded in invalidating the 2006 will. He informed the
court that Ms. Vess was not a legatee under the several prior
wills and codicils and that she would be entitled to receive
estate property through intestate succession only if she
successfully invalidated each of those instruments, which she
had not attempted to do. He argued that, absent some basis
for invalidating the prior wills, Ms. Vess's interest in
the estate was too remote to allow her to pursue the caveat.
response to the motion, Ms. Vess stated that she was
"only seeking to ensure her uncle's wishes are
honored fully, whether or not she receives any gain for
herself arising out of . . . her possible heir status."
She argued that her interest "based by intestacy should
provide sufficient standing" to caveat the will.
April 2012, several months after the filing of the petition,
the Register of Wills issued notice of the caveat petition to
Mr. Price, as an interested person. The notice stated that,
if Mr. Price wished to respond to the caveat petition, he was
required to do so "within 20 days after service of this
notice[.]" The Register also issued an Order to Answer
to Mr. Price, instructing him, as the personal
representative, to "respond to the petition to caveat no
later than 20 days after service." Mr. Price did not
file an additional response to the caveat petition at that
time, because he had already responded through his motion to
hearing, the orphans' court dismissed the caveat
petition, concluding that Ms. Vess lacked standing to
challenge the 2006 will. The court reasoned that, if Ms. Vess
prevailed in the caveat proceedings, the prior wills would be
offered for probate, but that she would receive nothing under
either of those wills. The court noted that Ms. Vess had
raised no question as to the validity of the prior wills.
Vess took a de novo appeal to the circuit court. The circuit
court reversed the dismissal of the caveat petition and
remanded the case to the orphans' court. In its opinion,
the circuit court reasoned that, even though Ms. Vess had
only a "slight chance to inherit" by invalidating
each of the successive wills, her status as an heir-at-law
was itself a sufficient interest for her to pursue the caveat
proceeding. Although Mr. Price could have appealed from the
circuit court's judgment to this Court, he did not do
The Petition to Transmit Issues
the case returned to the orphans' court, the court held a
hearing in October 2013 on the status of the caveat
proceedings. In open court, Ms. Vess and Mr. Price submitted
a joint petition asking the orphans' court to transmit
five issues to the circuit court for a jury trial: (a)
whether Howard Vess was competent to make the 2006 will; (b)
whether the will was procured by the exercise of undue
influence; (c) whether the testator's signature on the
will was genuine; (d) whether the will was attested and
signed by two credible witnesses in his presence; and (e)
whether the will was procured by fraud. The orphans'
court filed a hearing sheet, which stated that the joint
petition had been "granted" and that the judge
intended "to prepare [an] order" to transmit
months later, however, before the court finalized the written
order to transmit issues, Ms. Vess filed a line in the
orphans' court withdrawing her support for the joint
petition. For the first time, she complained that Mr. Price
had never filed a formal "answer" denying the
allegations of her petition. She contended that
"[t]ransmission of the issues first requires an
answer to the Petition to Caveat which establishes
the existence of a factual controversy."
upon learning of Ms. Vess's attempt to withdraw her
support for the joint petition (and, in fact, two days before
she filed the line with the orphans' court), Mr. Price
filed a formal answer to the caveat petition. In addition to
denying specific allegations, he represented: that the 2006
will was executed properly by Mr. Vess and attested by two
witnesses, that Mr. Vess had the requisite testamentary
capacity at the time the will was executed, and that the will
had not been procured by fraud or undue influence. Mr. Price
signed a statement verifying the contents of his answer under
penalty of perjury.
The "Order of Default" in the Caveat
after Mr. Price filed his answer, Ms. Vess moved to strike it
on the ground that it was untimely. She contended that Mr.
Price was required by Rule 6-122(b) to file "[a]ny
response" to the caveat petition "within 20 days
after service" of the petition. She argued that entry of
an order of default would be "appropriate" upon the
striking of Mr. Price's answer.
that the Maryland Rules do not authorize an orphans'
court to render judgment by default, Ms. Vess asked the
orphans' court to apply the rules that govern pleadings
in civil cases before the circuit court. Ms. Vess relied on
Rule 6-461, which makes certain Title 2 rules applicable in
the orphans' court and permits the orphans' court to
"apply other rules" from Title 2 "on petition
of a party . . . and after notice to all persons who may be
affected by the proceeding and an opportunity to be
heard[.]" Md. Rule 6-461(d). Specifically, Ms. Vess
requested that the orphans' court apply Rule 2-613(b),
which authorizes the circuit court to "enter an order of
default" where "the time for pleading has expired
and a defendant has failed to plead[.]"
Price opposed the motion, arguing primarily that Rule 2-613
did not apply to proceedings in the orphans' court. In
fact, at the time of the motion, Mr. Price was no longer in
"default, " because he had filed an answer two
months earlier. Rule 2-613 includes no provision authorizing
the court to strike a pleading so as to create a default.
the orphans' court granted Ms. Vess's motion without
a hearing, struck Mr. Price's answer, and directed that
an "order of default" be entered against him,
subject to his right to move to vacate the "order of
default" within 30 days after its entry.
Mr. Price continued to argue that Rule 2-613 did not apply,
he made a timely motion to vacate the "order of
default." He argued that the untimeliness of his answer
should be excused under the circumstances and that the record
demonstrated "a substantial and sufficient basis for an
actual controversy as to the merits of the action" under
Rule 2-613(e). In support, he relied on the verified answer
that he had filed before the "order of default" was
even entered, the discovery requests and responses that the
parties had exchanged,  and the parties' agreement to
submit a joint petition for issues, to which he pointed as
"an acknowledgement" by Ms. Vess that those issues
were contested. He argued that the will was
"presumptively valid" because it had an attestation
clause and that Ms. Vess would bear the burden of proving
otherwise. He asked the court to vacate the "order of
default, " to accept his answer for filing, and to
transmit the contested issues to the circuit court for trial.
hearing on October 22, 2014, the orphans' court granted
Mr. Price's motion to vacate the "order of
default." At the court's direction, the Register of
Wills made a docket entry stating that the orphans' court
had granted the motion and that the court would prepare an
order to transmit issues. On the same day, the court entered
a written order transmitting five issues to the circuit
court. The issues were the same issues that the parties
originally framed in the joint petition.
Ms. Vess's Post-Judgment Revisory Motion to the
Ms. Vess had the right to appeal the order transmitting
issues (see, e.g., Hegmon v.
Novak, 130 Md.App. 703, 711 (2000)) either to this
Court or to the circuit court,  she did not do
so. Instead, she filed a post-judgment motion, in which she
asked the orphans' court to exercise its revisory powers
under Maryland Rules 2-534 and 2-535, which apply to "a
final order" of an orphans' court. See Md.
Rule 6-461(d). She argued that the order was fully subject to
revision because the judgment had "los[t] its finality
upon the filing of the . . . Motion pursuant to Rule 2-534
and/or 2-535 within 10 days" after the entry of the
orphans' court, however, did not receive Ms. Vess's
motion by Monday, November 3, 2014, the tenth day after the
entry of its judgment. The Register of Wills stamped the document
to indicate that it was received on November 6, 2014, and
made a docket entry noting that the document had been filed
on November 6, 2014.
Vess's post-judgment motion included what she
characterized as an "alternative motion" to amend
the issues. She cited Rule 6-434(d), which authorizes the
orphans' court, "[u]pon petition, " to
"amend, supplement or modify issues previously
transmitted to a circuit court." The court had
transmitted two questions asking, respectively, whether the
2006 will had been procured by fraud or undue influence. Ms.
Vess asked the court to modify the questions to ask whether
the will was partially invalid on those grounds.
January 12, 2015, the orphans' court entered an order
denying Ms. Vess's post-judgment motion "in
whole[.]" Thirty days after the entry of that order, Ms.
Vess filed a notice of de novo appeal to the circuit court.
De Novo Appeal in Circuit Court from the Order to
the circuit court received the record from the orphans'
court, Mr. Price filed what he called a "Motion for
Summary Judgment" in the circuit court. In essence, he
argued that the order transmitting issues was correct and
that the circuit court should uphold the judgment on the
addition to his main argument on the merits, Mr. Price
asserted that Ms. Vess had failed to note a timely appeal
from the order to transmit issues. He observed that Ms. Vess
had not filed a notice of appeal within 30 days after the
orphans' court entered that order on October 22, 2014. He
argued that, although a revisory motion filed within 10 days
of the date of judgment may extend the time for noting an
appeal, Ms. Vess had not filed her motion within that 10-day
period. He relied on the docket entry showing that Ms. Vess
had filed her post-judgment motion on November 6, 2014, 15
calendar days after the entry of judgment. On that basis, he
contended that "the appeal must be dismissed" by
the circuit court.
response, Ms. Vess argued that her appeal was timely as to
the order to transmit issues. She claimed that her attorney
"filed the Motion to Alter or Amend" with the
orphans' court "on November 3, 2014 by placing the
Motion in the overnight box of the Circuit Court." She
submitted a separate motion to the circuit court, styled as a
"Motion to Correct Estate Docket."
a hearing on the dispositive motion, Ms. Vess's attorney
offered a billing record indicating that he had submitted the
post-judgment motion on the night of November 3, 2014. He
believed that the original version of the motion had a
time-stamp from the circuit court, but the stamp was not
visible on the copies sent from the orphans' court as
part of the de novo appeal.
hearing judge stated that he was familiar with the circuit
court's night box, which he described as "a wooden
box in the commissioner's office where pleadings can be
deposited after hours[.]" The judge stated that he was
unaware that the orphans' court used a night box. In
response, Ms. Vess's attorney claimed that a circuit
court employee "generally" separates the circuit
court filings from the orphans' court filings and does
something (it is not clear what) to ensure that the
orphans' court filings "get" to the
circuit court concluded that the docket entries were
"presumptively correct" and that those entries were
"dispositive evidence" of the filing date of
November 6, 2014. The court reasoned that the presumption of
correctness could not be rebutted by presenting a
"lawyer's bill for the time spent going on the date
to file it." The court announced that it would grant Mr.
Price's "motion for summary judgment" and that
the "whole appeal" would be "dismissed."
The court denied all other pending motions, including the
motion to correct the estate docket, on the ground that they
written opposition, Ms. Vess had argued that, even if her
motion to alter or amend was not timely, her post-judgment
motion had included timely "alternative motions" to
revise the judgment under Rule 2-535(a) and to amend the
issues previously transmitted under Rule 6-434(d). She argued
that her appeal was timely at least as to the denial of those
motions and, therefore, that the circuit court had the
authority to reconsider the underlying orphans' court
the court announced during the hearing that it was
"dismissing everything, " counsel for Ms. Vess
asserted that her appeal was "still viable" as to
the petition to amend the issues that were to be transmitted.
Her attorney did not, however, elaborate on why he believed
that the issues needed to be amended. The circuit court said
that it would consider those other matters if Ms. Vess raised
them in a timely motion.
November 10, 2015, the circuit court entered a written order
granting Mr. Price's "Motion for Summary
Judgment" and remanding the matter "to the
Orphans' Court to certify and send issues to [the circuit
court] as framed by Order of Orphans' Court dated October
22, 2014." The court also entered a separate order
denying Ms. Vess's motion to correct the estate docket as
The Motion for Reconsideration ...